Overview
The Safe Third Country Agreement (STCA) is an agreement between Canada and the United States, in effect since 2004, that deems both countries to be safe for the purposes of refugee determination. Under the STCA, most people who arrive at the Canada-US land border from the United States and want to claim asylum are returned to the US to pursue their claim there, rather than having their claim processed in Canada.
The STCA significantly impacts refugee claimants who attempt to reach Canada from the US. Understanding how the agreement works, its exceptions, and recent changes is important for those considering seeking refuge in Canada.
How the Agreement Works
Under the STCA, a person who arrives at the Canada-US land border and is seeking to claim asylum in Canada will typically be turned back to the US. The logic of the agreement is that since the US is considered a "safe third country," individuals are expected to pursue refugee protection in the US rather than Canada.
When someone arrives at a land port of entry on the Canada-US border and indicates the wish to claim asylum in Canada, they will be interviewed by a Canadian border officer. The officer will likely determine that the STCA applies and will indicate that the individual must return to the US to pursue their claim there. The person is then escorted back across the border.
The scope of the Agreement changed on 25 March 2023, when an Additional Protocol came into force. Before that date the Agreement applied only at official land ports of entry. It now applies across the entire Canada-United States land border, including between ports of entry and on internal waterways, where a claim for refugee protection is made less than 14 days after the day of entry into Canada. Crossing away from an official port of entry therefore no longer places a person outside the Agreement.
STCA Rules and the Safe Third Country Concept
The "safe third country" concept is based on the assumption that both Canada and the US meet international standards for refugee protection. Both countries are signatories to the 1951 Refugee Convention and have established asylum systems.
The STCA stipulates that both countries will process asylum claims from the other country and provide appropriate protection if the person qualifies as a refugee. The agreement is intended to distribute responsibility for asylum claims between the two countries and prevent "asylum shopping", the practice of moving between countries to find the most favorable jurisdiction for claiming protection.
Canada and the US have maintained that the agreement is consistent with international refugee law, though some human rights organizations and lawyers argue that the US does not uniformly meet Canada's protection standards.
Exceptions to the Safe Third Country Rule
Although the STCA is broadly applied, there are certain exceptions where a person can still claim asylum in Canada even if they are arriving from the US at a land border:
- Family member exception: where a qualifying family member has status in Canada. The Agreement defines the qualifying relatives broadly, including a spouse, common-law partner, legal guardian, child, parent, sibling, grandparent, grandchild, aunt, uncle, niece and nephew.
- Unaccompanied minor exception: for a person who is unmarried, under 18, and not accompanied by a parent or legal guardian in either Canada or the United States.
- Document holder exception: for a person holding a valid Canadian visa, work permit, study permit or travel document, or who is not required to hold a visa to enter Canada but does require one to enter the United States.
- Public interest exception: which includes a person charged with or convicted of an offence that could attract the death penalty, subject to the admissibility limits in the Agreement.
Individuals who believe an exception may apply to their situation should communicate this to the border officer and provide supporting documentation.
What changed in 2023
The 2023 change was geographic, not national. An Additional Protocol to the Agreement came into force on 25 March 2023 and extended the Agreement from official land ports of entry to the whole land border, including between ports of entry and internal waterways, for a claim made less than 14 days after the day of entry.
The Additional Protocol did not create any list of countries whose nationals are exempt from the Agreement. Section 159.3 of the Immigration and Refugee Protection Regulations designates the United States as the only country designated for the purposes of the Agreement, and the exceptions listed above are the exceptions that exist. Any source describing an exempt-country list is describing something that has never formed part of the Agreement.
Roxham Road Border Closure
Roxham Road in Quebec was a focal point for asylum seekers attempting to enter Canada irregularly. For years, asylum seekers crossed at this location away from an official port of entry and then made refugee claims in Canada. Until 25 March 2023 the Agreement reached only official land ports of entry, so a claim made after crossing elsewhere was not caught by it.
Roxham Road was never an official border crossing, so it was not closed as one. What changed on 25 March 2023 was the entry into force of the Additional Protocol, which extended the Agreement across the entire land border. Crossing between ports of entry stopped being a way to avoid the Agreement from that date, and that is why the route ceased to serve the purpose it had been used for.
Following the closure of Roxham Road, asylum seekers have faced greater obstacles to reaching Canada outside the STCA framework. This underscores the importance of understanding the STCA, its exceptions, and your options for seeking asylum in Canada.
Your Rights Under the STCA
Even if the STCA applies to your situation, you have important rights:
- Right to Explanation: A border officer must explain why the STCA applies to you and provide you with information about your options.
- Right to Time to Decide: You typically have a period of time (usually 30 days) to decide whether to pursue a claim in the US or return to your country of origin.
- Right to Legal Counsel: You can consult with a lawyer about your options before deciding whether to pursue a claim in the US.
- Right to Challenge the Application of STCA: If you believe the STCA should not apply to you (due to an exception or other reason), you can request a review.
Rights should not be waived or agreements made to return to the country of origin without fully understanding available options under the STCA.
Challenging STCA Determinations
If you believe the STCA has been incorrectly applied to your situation, or if you believe you qualify for an exception, you can seek legal remedies:
- Request a Review: If you are turned back under the STCA and disagree with the application of the agreement, you can request a review by IRCC.
- Judicial Review: If you wish to challenge an STCA determination in court, you can seek judicial review from the Federal Court. This is a complex legal proceeding and requires legal assistance.
- Humanitarian and Compassionate Application: Even if the STCA applies, you can apply for discretionary relief based on humanitarian or compassionate grounds in exceptional circumstances.
Legal assistance is critical if you wish to challenge an STCA determination. Community legal clinics and immigration NGOs can advise you about your options.